On behalf of the plaintiff-appellant, the cause was
submitted on the briefs of Timothy J. Yanacheck of Bell, Gierhart&Moore,
S.C., Madison.

Respondent

ATTORNEYS:

On behalf of the defendant-respondent Labor and Industry
Review Commission, the cause was submitted on the brief of David A. Hart, assistant attorney general, and J.B.
Van Hollen, attorney general.

On behalf of the defendant-respondent Gloria N. Graham,
the cause was submitted on the brief of Raymond G. Clausen of Clausen & Severson, Madison.

2007 WI App 262

COURT OF APPEALS

DECISION

DATED AND FILED

November 29, 2007

David R. Schanker

Clerk of Court of Appeals

NOTICE

This opinion is subject to
further editing.If published, the
official version will appear in the bound volume of the Official
Reports.

A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals.SeeWis. Stat. § 808.10 and Rule 809.62.

Appeal No.

2006AP2695

Cir. Ct.
No.2006CV233

STATE OF WISCONSIN

IN COURT OF
APPEALS

County of Dane,

Plaintiff-Appellant,

v.

Labor and Industry Review Commission and

Gloria N. Graham,

Defendants-Respondents.

APPEAL
from an order of the circuit court for DaneCounty:maryann
sumi, Judge.Affirmed.

Before Dykman, Vergeront and Lundsten, JJ.

¶1LUNDSTEN, J. Under Wisconsin
worker’s compensation law, may an injured worker receive a “disfigurement”
award based on a limp?The Labor and
Industry Review Commission (LIRC) has previously answered this question
twice—in 1986 answering yes, and in 1994 answering no.In its 2006 decision in this case, LIRC
answered the question yes.DaneCounty
contends the answer should be no, and appeals the circuit court’s order
upholding LIRC’s decision.We consider
whether, in light of LIRC’s changes in position on the issue since 1986, we
should accord any deference to LIRC’s current decision.We conclude that LIRC’s yes answer in this
case is entitled to due weight deference and is a reasonable interpretation of
the law.We further conclude that LIRC’s
previous no answer is not a more reasonable interpretation.Accordingly, we affirm the circuit court’s
order.[1]

Background

¶2In July 2001, Gloria Graham slipped and fell on a wet floor
while at work.One of her legs twisted
behind her back and she sustained an injury to her knee.As a result, she has a limp, persistent pain,
strength loss in her joints, and poor balance when walking without a cane.

¶3Graham’s limp was described by the administrative law judge
(ALJ) as “a mixture of a limp and a foot drag.”The ALJ stated that “watching her walking with such difficulty was
painful.”

¶4The County conceded worker’s compensation liability and paid
certain benefits to Graham, including “permanent partial disability for 25
percent loss at knee.”The County and
Graham disputed, however, whether Graham was entitled to an additional benefit
for disfigurement based on her limp.The
operative statute, Wis. Stat. § 102.56(1)
(2005-06),[2]
provides, in relevant part, as follows:

If an employee is so
permanently disfigured as to occasion potential wage loss, the department may
allow such sum as it deems just as compensation therefor ….Consideration for disfigurement allowance is
confined to those areas of the body that are exposed in the normal course of
employment.The department shall also
take into account the appearance of the disfigurement, its location, and the
likelihood of its exposure in occupations for which the employee is suited.

¶5The ALJ ruled in Graham’s favor, concluding that the look of
her legs and her altered gait would negatively affect her potential
employability and the wage that she will earn.LIRC affirmed the ALJ, adopting the ALJ’s findings and order.The circuit court affirmed LIRC’s order, and
the County appealed.

¶6We reference additional facts as needed below.

Discussion

A.Level Of
Deference

¶7LIRC concluded here that a limp may be a “disfigurement”
under Wisconsin worker’s compensation
law.We review LIRC’s decision, not the
circuit court’s.Stoughton
Trailers, Inc. v. LIRC, 2007 WI 105, ¶26, ___ Wis. 2d ___, 735 N.W.2d
477.The first question we must decide
is what level of deference applies to LIRC’s interpretation of Wis. Stat. § 102.56(1) to allow a
disfigurement award based on a limp.

¶8The supreme court has summarized the three levels of
deference as follows:

A reviewing court accords an interpretation of a
statute by an administrative agency one of three levels of deference—great
weight, due weight or no deference—based on the agency’s expertise in the area
of law at issue.

An agency’s interpretation of
a statute is entitled to great weight deference when:(1) the agency was charged by the legislature
with the duty of administering the statute; (2) the interpretation of the
agency is one of long-standing; (3) the agency employed its expertise or
specialized knowledge in forming the interpretation; and (4) the agency’s
interpretation will provide uniformity in the application of the statute.

We grant an intermediate level
of deference, due weight, “where an agency has some experience in the area, but
has not developed any particular expertise in interpreting and applying the
statute at hand” that would put the agency in a better position to interpret
the statute than a reviewing court.

The deference allowed an administrative agency under
due weight is not so much based upon its knowledge or skill as it is on the
fact that the legislature has charged the agency with the enforcement of the
statute in question.[Under the due
weight standard] …, a court will not overturn a reasonable agency decision that
comports with the purpose of the statute unless the court determines that there
is a more reasonable interpretation available.

We apply de novo review when
“there is no evidence that the agency has any special expertise or experience
interpreting the statute[,] … the issue before the agency is clearly one of
first impression, or … the agency’s position on an issue has been so
inconsistent so as to provide no real guidance.”

Stoughton Trailers,
2007 WI 105, ¶¶26-29 (citations omitted).

¶9The County concedes that LIRC would ordinarily be entitled to
great weight deference on an issue like the one here.The County argues, however, that LIRC
“forfeited” its entitlement to great weight deference by departing from its
previous interpretation of Wis. Stat. § 102.56(1)
in Spence v. POJA Heating & Sheet Metal Co., WC Claim No.
88-018562 (LIRC, Jan. 20, 1994).In
addition, the County argues that Spence is a longstanding
construction and, therefore, must be accorded great weight deference.The County cites to case law stating that “‘[l]ong-standing
administrative construction of a statute is accorded great weight in the
determination of legislative intent because the legislature is presumed to have
acquiesced in that construction if it has not amended the statute.’”Hacker v. DHSS, 197 Wis. 2d 441, 460, 541 N.W.2d 766 (1995) (quoting Layton Sch. of Art & Design v.
WERC, 82 Wis.
2d 324, 340, 262 N.W.2d 218 (1978)).We
are not persuaded.

¶10In its decision, LIRC acknowledged that its conclusion here is
inconsistent with its previous decision in Spence.In Spence, LIRC disallowed a
disfigurement award based on a limp, reasoning that disfigurement “historically”
meant injuries resulting in amputation, scars, or burns.LIRC concluded here, however, that it had
erred in Spence because nothing in Wis. Stat. § 102.56(1) limits disfigurement to
amputations, scars, and burns.Instead,
LIRC explained, “consideration for disfigurement allowance is confined to those
areas of the body that are exposed in the normal course of employment.”LIRC noted that its conclusion here is consistent
with Jorgensen v. Wisconsin Department of Veterans Affairs, WC
Claim No. 84-27383 (LIRC, Oct. 10, 1986), a limp case predating Spence
that allowed a disfigurement award based, in part, on the limp.[3]

¶11The County’s argument is flawed because Spence
itself is a departure from LIRC’s prior decision in Jorgensen.By the County’s logic, LIRC forfeited any
entitlement to great weight deference when it decided Spence. Moreover, the case law on which the County
relies is inapplicable.Those cases do
not involve situations in which an agency has changed position on an
issue.SeeHacker,
197 Wis. 2d at 460; Layton
Sch. of Art, 82 Wis.
2d at 340.

¶12LIRC and Graham argue that LIRC’s present interpretation of the
statute is entitled to great weight deference.We focus on the second of the four requirements for great weight
deference—that an agency interpretation is one of long standing—and note that
LIRC and Graham offer no argument explaining why LIRC’s present interpretation
of Wis. Stat. § 102.56(1) is
one of long standing even though it represents a change from Spence,
LIRC’s previous decision on the topic. We
perceive no reason why LIRC’s present interpretation should be treated as one
of long standing.[4]Consequently, we turn our attention to
whether due weight deference or no deference applies.

¶13Neither party provides developed argument regarding what level
of deference we should apply if we do not apply great weight deference to the
decision of each party’s choosing.[5]Accordingly, we look to three principles from
case law that appear to be most applicable.

¶14First, courts ordinarily apply due weight deference when an
agency has “‘some experience in the area, but has not developed any particular
expertise in interpreting and applying the statute at hand.’”Stoughton Trailers, 2007 WI
105, ¶28 (citation omitted).Here, LIRC
easily meets the “some experience” standard.LIRC has significant experience in interpreting Wis. Stat. § 102.56(1).The County does not argue otherwise.

¶15Second, the decision to accord an agency due weight deference
is not so much based on the agency’s knowledge or skill as it is on the fact
that the legislature has charged an agency with enforcement of the
statute.Stoughton Trailers,
2007 WI 105, ¶28.There is no dispute
that LIRC is an agency charged with enforcement of the statute.

¶16Last, courts give no deference to an agency’s conclusion
of law when the agency’s position on the issue “‘has been so inconsistent so as
to provide no real guidance.’”Id., ¶29
(citation omitted).Notably, the County
does not argue that LIRC’s position has been “so inconsistent so as to provide
no real guidance.”Likewise, we find
little assistance in the case law for determining when an agency’s change in position
on an issue should be considered so inconsistent as to provide no real
guidance.[6]

¶17We conclude that an agency’s change in position does not, by
itself, constitute an inconsistency that results in “no real guidance.”We discern at least two potentially
overlapping situations in which an inconsistency results in a lack of
guidance.First, an agency might purport
to adhere to a rule, but apply it inconsistently to various similar fact situations,
so that parties are left to wonder how the agency might apply the rule to their
facts.Second, an agency might
frequently change position without acknowledging prior contrary positions,
leaving parties unable to reasonably predict the view the agency will adopt in
future cases.Neither situation is
present here.LIRC’s present decision
takes the clear position that a limp may constitute a “disfigurement” under Wisconsin worker’s compensation law.[7]And LIRC has not frequently changed positions
without acknowledging a change.Jorgensen
was decided in 1986.A little more than
seven years later, in 1994, LIRC issued Spence.Now, twelve years after Spence,
LIRC has decided Graham’s case.And
here, LIRC acknowledged Spence and provided an explanation for
departing from that decision.

¶18In light of the considerations discussed above, we will apply
due weight deference to LIRC’s conclusion that a limp may be a “disfigurement”
under Wis. Stat. § 102.56(1).

B.Application Of Due Weight Deference To LIRC’s

Present Interpretation Of Wis. Stat. § 102.56(1)

¶19As already indicated, LIRC interpreted Wis. Stat. § 102.56(1) in Graham’s case to allow a
disfigurement award based on her limp.The County, in contrast, interprets the statute as LIRC did in Spence
to preclude a disfigurement award based on a limp.For the reasons that follow, we conclude that
LIRC’s interpretation is reasonable and that the County’s interpretation is not
more reasonable.

¶20As noted above, LIRC acknowledged in its decision here that its
interpretation of Wis. Stat. § 102.56(1)
is inconsistent with Spence.LIRC concluded, however, that it had erred in Spence.Unlike its Spence decision,
LIRC focused here on the full text of the statute, observing that nothing in
§ 102.56(1) limits disfigurement to amputations, scars, and burns.Moreover, LIRC observed, the ordinary and
accepted meaning of disfigurement is not nearly so limited.Dictionary definitions of “disfigure” include
the following:

1: to make less complete, perfect, or
beautiful in appearance or character

Webster’s Third New International Dictionary 649 (unabr. ed. 1993).

1: to
impair (as in beauty) by deep and persistent injuries

Webster’s New Collegiate Dictionary 327
(1977).

¶21LIRC also correctly recognized that the term “disfigurement” in
Wis. Stat. § 102.56(1) is
qualified by the following language:“Consideration for disfigurement allowance is confined to those areas of
the body that are exposed in the normal course of employment.”LIRC reasoned that Graham’s limp is exposed
in the normal course of her employment and, therefore, that her limp falls
within this qualifying language.

¶22LIRC’s present interpretation comports with the manifest
purpose of disfigurement awards:to
compensate an employee for potential wage loss resulting from negative
perceptions about a physical abnormality when those perceptions are not
justified by any corresponding functional limitations.Cf. Eaton Corp. v. LIRC, 122 Wis. 2d 704, 709, 364
N.W.2d 172 (Ct. App. 1985) (“[Wisconsin
Stat. § 102.56] affords the department substantial leeway in
calculating a sum to compensate workers who most likely will never know the
full extent to which their disfigurements reduced their wages.”).Undoubtedly, potential employers may have
negative perceptions of a limp such as Graham’s, and those perceptions may
negatively impact wage-earning potential beyond what any corresponding
functional limitations justify.The
circumstances of Graham’s case are illustrative.The facts found by the ALJ show that at least
one potential employer was concerned that Graham had multiple sclerosis or had
suffered a stroke.

¶25The County points to the statement in LIRC’s Spence
decision proclaiming that disfigurement has “historically” been understood to
mean amputations, scars, and burns.This
statement in Spence, however, is unsupported by discussion or
authority.Without further explanation,
we decline to hold that the County’s interpretation of Wis. Stat. § 102.56(1) is more reasonable than LIRC’s
present interpretation based on the “historical” understanding of
disfigurement.

¶27We conclude that the County’s proffered interpretation is not
more reasonable than LIRC’s present interpretation.Accordingly, we affirm LIRC’s conclusion that
a limp may be a “disfigurement” under Wis.
Stat. § 102.56(1) and, therefore, affirm the circuit court.

By
the Court.—Order affirmed.

[1] We
certified this case to the supreme court, but the supreme court refused
certification.

[2] All
references to the Wisconsin Statutes are to the 2005-06 version unless
otherwise noted.

[4] The
circuit court agreed that LIRC’s interpretation here is not one of long
standing.

[5] As
noted in the text, the County does not take a clear position on due weight or
no weight deference.The County
sometimes argues that LIRC’s interpretation of Wis. Stat. § 102.56(1) in Graham’s case is unreasonable,
but at other times suggests that this interpretation is simply less
reasonable than LIRC’s interpretation in Spence.

[6]SeeResponsible Use of Rural and Agric. Land (RURAL) v. PSC, 2000 WI
129, ¶23 & n.11, ¶24, 239 Wis. 2d 660, 619 N.W.2d 888 (applying due weight
deference to the PSC’s application of a statute in one case despite direct
inconsistency with PSC’s application of the same statute in another case); cf.id., ¶99 (Abrahamson, C.J., dissenting) (“[T]he PSC has
apparently had only two opportunities to interpret the relevant laws and those
two interpretations are inconsistent. Under
these circumstances neither of the agency’s interpretations provides real
guidance to the courts.”); see alsoStoughton Trailers, Inc. v.
LIRC, 2006 WI App 157, ¶21, 295 Wis. 2d 750, 721 N.W.2d 102
(applying due weight deference even though LIRC “took a somewhat different
approach … than in previous cases addressing somewhat similar issues”), aff’d,
2007 WI 105, ¶¶31-32, ___ Wis. 2d ___, 735 N.W.2d 477 (agreeing with conclusion
that due weight deference was appropriate); cf.Marten Transp.,
Ltd. v. DILHR, 176 Wis. 2d 1012, 1019, 501 N.W.2d 391 (1993)
(concluding that LIRC’s decision was not entitled to any deference because LIRC
had taken a contrary position on the same issue within a two-month
period).

[7] Whether
a particular limp is significant enough to be afforded disfigurement status is
not an issue before us.There is no
dispute that, if a limp may constitute a disfigurement, Graham’s limp is
significant enough to qualify.